Citation Nr: 0017586
Decision Date: 07/06/00 Archive Date: 09/08/00
itation Nr: 0017586
Decision Date: 07/03/00 Archive Date: 07/11/00
DOCKET NO. 96-08 784A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease as secondary to service-connected fracture of left
transverse process at L2.
2. Entitlement to a compensable disability rating for
service-connected fracture of left transverse process at L2.
REPRESENTATION
Appellant represented by: Virginia Y. Middleton,
Attorney at Law
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
VACATUR
On April 11, 2000, the Board entered a final decision in this
appeal. The appellant had submitted additional evidence
directly to the Board with a waiver of regional office
consideration. This evidence was received at the Board
before the decision was dispatched, but it was not associated
with the claims file at the time the Board made its decision.
There is no indication that the appellant has filed a notice
of appeal with the U.S. Court of Appeals for Veterans Claims.
Accordingly, in order to assure due process, the Board will
vacate the April 11, 2000, decision in the instant appeal
pursuant to 38 C.F.R. § 20.904 and issue the decision that
follows in its place.
ORDER
The Board decision of April 11, 2000, in the above-captioned
appeal is vacated.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Citation Nr: 0009626
Decision Date: 04/11/00 Archive Date: 04/20/00
DOCKET NO. 96-08 784A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease as secondary to service-connected fracture of left
transverse process at L2.
2. Entitlement to a compensable disability rating for
service-connected fracture of left transverse process at L2.
REPRESENTATION
Appellant represented by: Virginia Y. Middleton,
Attorney at Law
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
INTRODUCTION
The veteran had active military service from May 1953 to
April 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which denied a compensable
disability rating for service-connected fracture of left
transverse process at L2 and denied entitlement to service
connection for degenerative disc disease as secondary to
service-connected fracture of left transverse process at L2.
The veteran appealed the RO's decision to the Board. In his
substantive appeal, he requested a hearing before a Member of
the Board at the RO. He then clarified that he desired a
hearing before a Member of the Board in Washington, D.C. A
hearing was scheduled for April 1998; however, the veteran
canceled his hearing due to health concerns.
In July 1998, the Board found that the claim for service
connection for degenerative disc disease as secondary to
service-connected fracture of left transverse process at L2
was not well grounded and upheld the RO's decision concerning
a noncompensable disability rating for service-connected
fracture of left transverse process at L2. The Board also
remanded the issue of whether new and material evidence had
been presented to reopen a claim of entitlement to direct
service connection for spinal arthritis or degenerative disc
disease of the cervical, thoracic, and lumbar spine for the
issuance of a statement of the case. The veteran appealed
the Board's decision to the United States Court of Appeals
for Veterans Claims (formerly the U.S. Court of Veterans
Appeals) (Court).
In November 1998, counsel for the veteran and VA filed a
Joint Motion for Partial Remand and to Stay Further
Proceedings. The parties moved the Court to vacate the
portion of the July 21, 1998, Board decision that found the
claim of entitlement to service connection for degenerative
disc disease as secondary to service-connected fracture of
left transverse process at L2 not well grounded and the
portion of that decision which denied a compensable
disability rating for service-connected fracture of left
transverse process at L2. The parties also moved to dismiss
from the appeal the third issue remanded in the July 1998
decision. The veteran did not take issue with the propriety
of the Board's remand of the issue of whether new and
material evidence had been submitted to reopen a claim of
entitlement to direct service connection for spinal arthritis
or degenerative disc disease of the cervical, thoracic, and
lumbar spine. An Order of the Court dated in November 1998
granted the joint motion.
In April 1999, the Board requested a medical opinion from the
Veterans Health Administration (VHA) in accordance with 38
C.F.R. § 20.901(a) (1999). In conformance with 38 C.F.R. §
20.903 (1999), the appellant and his attorney were notified
at the time the VHA opinion was initially sought by means of
an April 1999 letter. After the opinion was received at the
Board, in June 1999 the attorney was provided a copy and 60
days to submit any additional evidence or argument in
response to the opinion. The attorney submitted a written
statement to the Board in August 1999.
The attorney also submitted private treatment records of the
veteran directly to the Board in August 1999. The RO has not
considered this evidence as it pertains to the veteran's
claims; however, because the attorney waived RO consideration
of the evidence, a remand is not required. See 38 C.F.R.
§ 20.1304(c) (1999).
FINDINGS OF FACT
1. The veteran's claims are plausible, and the RO has
obtained sufficient evidence for an equitable disposition of
these claims.
2. The veteran's current degenerative disc disease has not
been shown to be related to his service-connected fracture of
left transverse process at L2.
3. The veteran's service-connected fracture of left
transverse process at L2 is manifested by no residual
disability, and none of the veteran's current back-related
symptomatology is attributable to the fracture of left
transverse process at L2.
CONCLUSIONS OF LAW
1. The veteran has stated well-grounded claims, and VA has
satisfied its duty to assist him in development of these
claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103
(1999).
2. The veteran is not entitled to service connection for
degenerative disc disease as secondary to service-connected
fracture of left transverse process at L2. 38 C.F.R.
§§ 3.102, 3.310(a) (1999).
3. The criteria for a compensable disability rating for
fracture of left transverse process at L2 have not been met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, 4.20, 4.40, 4.45 and 4.71a, Diagnostic Code 5285 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
During service, the veteran slipped and fell during a
mountain training course on October 4, 1954. Contemporaneous
records reflect that he jumped off a rock and landed on his
back. He was not able to get up by himself. Examination
showed swelling in the area of the left lateral lumbosacral
spine with excessive tenderness. X-rays showed a simple
fracture of the left transverse process of L2 without any
displacement. A slight irregular depression of the superior
surface of the centrum of L2 suggested a possible compression
fracture. The veteran was hospitalized for 46 days. On
October 20, he was able to ambulate to the mess hall. In
November 1954, he still complained of stiffness and soreness
at the L2 vertebra, left. He was assigned a temporary
profile after discharge from the hospital. The report of his
separation examination in April 1955 showed no abnormalities.
In June 1955, M. Harris, M.D., indicated that the veteran was
seen on May 23, 1955, when he complained of back pain which
reportedly started during active service. The physical
examination was essentially negative.
In June, July and October 1955, the veteran provided lay
statements indicating that he had to quit his job after
service because of back pain.
Upon VA examination in July 1955, the veteran gave a history
of back pain since October 1954. The examiner concluded that
there was no residual orthopedic disease or disability found.
The examination showed that the veteran's posture was normal.
There was no objective tenderness, paralumbar muscle
guarding, or muscle spasm. Flexion, extension, and side
bending were normal. Knee and ankle jerks were equal and
physiological bilaterally. Length and circumference of the
extremities was equal bilaterally. Straight leg raising test
was negative bilaterally. Patrick's test was negative
bilaterally. X-rays of the lumbar spine, sacrum and
sacroiliac joints showed no abnormal skeletal changes.
The veteran was hospitalized at Porter Memorial Hospital in
June and July 1974. He underwent surgery on the cervical
spine in July 1974. Pertinent diagnoses included cervical
disc disease of C5 and C7. There were no complaints or
findings pertaining to the lumbar spine.
In 1976, the veteran submitted lay statements indicating that
he had injured his back during service and that he was having
difficulty working.
A statement from John C. Wright, M.D. dated in June 1976
indicated that the veteran had severe arthritis of the
cervical and thoracic spines; there was no indication of any
lumbar spine disability.
A letter from John D. Ashley, M.D., dated in November 1977
indicated that the veteran complained of continuous back
pain. He reportedly fell 45 feet from a cliff during active
service. Dr. Ashley stated that the veteran had long-
standing symptomatology not justified by physical or x-ray
findings, and a diagnosis of conversion reaction was
rendered.
In January 1978, the veteran underwent a VA examination. He
complained of constant back pain, and stated that he injured
his lumbar spine during service when he fell 45 to 50 feet,
landing on his back. Examination of the lumbar spine showed
range of motion of flexion to 75 degrees, backwards extension
to 30 degrees, lateral flexion to 30 degrees, and rotation to
30 degrees. The left Achilles tendon reflex was diminished
compared to the right, and straight leg raising test was
positive on the left. X-rays of the lumbar spine showed
minimal osteoarthritic spur formation. There was no evidence
of spondylolysis and the disc spaces were normally
maintained. Diagnoses included traumatic arthritis of the
lumbar spine with mild residual loss of range of motion and
status post anterior fusion of the cervical spine.
A letter from John Saunders, D.C., dated in April 1978
referred to a radiograph of June 11, 1955. Dr. Saunders
indicated that he treated the veteran with poor results for
about six months after June 11, 1955. His treatment was
based on palpatory rather than radiographic findings.
Findings included an apparent healed fracture of the neural
arch, bilaterally, of L5; evidence of misalignment
subluxation of L4, L5; evident functional deficiency, left
lower extremity; and no discernible disc pathology.
A September 1978 x-ray of the veteran's lumbar spine showed
hypertrophic spurring on the anterior superior aspect of L4
and to a lesser extent L3. The lateral aspect of the top of
L4 also demonstrated spurring. The vertebral bodies and disc
spaces otherwise appeared intact. The transverse processes
appeared within normal limits.
A Board decision of November 1979 denied service connection
for residuals of fracture of second lumbar vertebra,
including spinal arthritis. The Board stated that the
inservice x-rays did not definitively show that the veteran
had fractured L2, as opposed to the transverse process, and
the post-service records showed no evidence of fracture of
L2. The Board found that the veteran's inservice back injury
was acute and transitory without any residual disability and
that any arthritis of the spine was not related to the
inservice injury.
A letter from John Saunders, D.C., dated in September 1982
indicated that the veteran was treated beginning on June 11,
1955. The duration of treatment was not a matter of record.
X-rays showed displacement of "5L" as a result of trauma.
VA medical records dated in August 1982 showed the veteran's
complaints of neck and back pain. Examination showed
positive straight leg raising test bilaterally, decreased
range of motion of the lumbar spine in all directions, and
some lumbosacral spasm. The diagnosis was probable
degenerative disc disease of lumbar spine with mechanical,
but no radicular deficits seen.
In December 1982, the veteran was given VA neuropsychiatric
and orthopedic examinations. He continued to complain of
back pain. On neuropsychiatric examination, the diagnosis of
psychophysiologic musculoskeletal disorder was given. The
orthopedic examiner conducted a "rather thorough" review of
the medical information in the claims folder. The examiner
noted radiological interpretations in the claims folder that
were at odds with the military x-ray interpretation, noting
specifically that x-rays since service had not shown evidence
of an old fracture of the transverse process of the second
lumbar vertebra. Degenerative arthritis of the cervical,
thoracic, and lumbar spine was shown. It was stated that
insidious generalized arthritis would usually show changes in
some of the extremity joints along with changes in the
vertebral column. There was no deformity such as scoliosis
or kyphosis in the thoracic spine upon examination. There
was a considerable amount of tenderness in the lumbar region.
The veteran could walk on his tiptoes and heels, indicating
fairly good motor power ability. Range of motion was forward
flexion to 30 degrees and backward extension to 10 degrees.
Lateral flexion and rotation bilaterally were carried out at
about half the normal ranges, and the veteran indicated
distress and spasm. Dermatome evaluations showed diminished
sensations of L4-5 and L5-S1 on the left. Straight leg
raising test was positive bilaterally. The examiner noted
that there had been a traumatic fall resulting in a fracture
of a transverse process of a lumbar vertebra. There was also
degenerative arthritis restricted to the vertebral bodies.
The examiner concluded that anybody who fell hard enough to
fracture a transverse vertebral process probably sustained
trauma to the whole spinal column, and it would be reasonable
to assume that degenerative changes without evidence of
degenerative changes in the appendages would be of a
traumatic nature. The examiner stated that there might be
other clinicians who would disagree with this statement.
X-rays of the veteran's lumbosacral spine showed slight disc
space narrowing at L3-L4 with minimal osteophyte formation,
which was slightly worse than shown on the previous x-rays.
Diagnoses were traumatic injury, back, documented in military
medical records, with military diagnosis of fracture,
transverse process, left, and physical findings as given,
strongly suggesting degenerative joint disease of the
vertebral column, see supportive studies.
A rating decision of January 1983 continued to deny service
connection for residuals of back injury.
In May 1984, the veteran underwent another VA examination.
He complained of constant back pain. He favored his left hip
when he walked. There was no evidence of muscle atrophy in
the extremities, and the examiner stated that the veteran
overreacted during the examination. Range of motion for the
lumbar spine was forward flexion to 20 degrees, with
complaints of pain, and lateral flexion and rotation to 10
degrees bilaterally. Straight leg raising was positive
bilaterally. X-rays of the lumbar spine showed mild
osteophytic spurring along the lumbar vertebrae. Diagnoses
included residuals of fracture of the left transverse process
of L2, previous records, and degenerative disc disease,
lumbar spine.
In May 1984, John Saunders, D.C. provided VA a June 11, 1955,
x-ray of the veteran's spine. He was not able to locate
records as to the timing or number of office calls. A VA
doctor indicated that the film could not be interpreted due
to age and deterioration.
A Board decision of March 1985 denied service connection for
residuals of back injury finding that new and material
evidence had not been submitted to reopen the previously
denied claim.
Upon VA examination in April 1986, the veteran complained of
back pain. The examiner indicated that the veteran
overreacted throughout the entire examination, and his
symptoms and reactions were out of proportion to the physical
findings, particularly related to the lower back. He was
quite jumpy upon examination of his lower back, and he
complained of pain with even the slightest touch. He
accomplished range of motion to no more than 30 percent of
normal because he stated that he had too much pain. There
was no atrophy of the legs. Reflexes were intact, and no
sensory deficits were noted. There was a negative sciatic
notch test. Straight leg raising was normal. X-rays of the
lumbar spine showed degenerative changes with anterior
spurring at L1 through L5. Prior fracture of the transverse
process of L2 was not identified. Diagnoses included
degenerative disc disease of the lumbar spine.
Upon VA examination in September 1988, the veteran complained
of pain, inability to bend or lift without pain, and his
right leg giving out. The veteran was reluctant to move
during the examination because he said that he expected pain
upon doing so. With encouragement, he moved a lot better.
His lower back appeared normal, and the pelvis was level.
Straight leg raising was negative. He had 85 percent of
flexion, extension, and lateral bending. X-rays of the
lumbar spine showed small anterior osteophyte formation at
the anterior superior corner of L4 with minimal osteoporosis.
The examiner indicated that no degenerative disease was found
in the lumbar spine.
VA medical records covering the period February 1987 to
January 1989 showed occasional mention of degenerative disc
disease and degenerative joint disease, without mention of
the affected joints or spine segments.
Upon VA examination in March 1989, the veteran continued to
complain of chronic back pain. He had about 40 percent
limitation of motion of the lumbar spine in all directions.
He could heel and toe walk well. Straight leg raising test
was positive bilaterally. X-rays of the lumbar spine showed
no significant interval change in the small osteophyte
formation at L4. Diagnoses included degenerative disc
disease, lumbar spine and degenerative disc disease, cervical
spine, postoperative fusion.
A letter from Dr. Ashley dated in May 1993 indicated that x-
rays showed considerable deformity and spondylolysis of the
L5 vertebra on the S1 vertebra with marked displacement of
the sacrum. The veteran complained of inability to walk more
than one block due to lumbar pain. Examination showed marked
exaggeration of the normal lumbar curvature. Diagnoses
included spondylolysis, L5 on S1, with rotation of the sacrum
to approximately 45 degrees, posterior, with evidence of disc
disease clinically at L5-S1. Rather marked osteoarthritis in
the lumbar spine was also present. Dr. Ashley concluded that
the veteran was totally disabled and suffered from more or
less continuous pain.
VA medical records covering the period April 1992 to April
1993 indicated that a CT myelogram in August 1992 showed
degenerative arthritis in the lumbar and cervical spine
without surgical pathology.
Upon VA examination in July 1993, the veteran had generalized
tenderness over the lower lumbar vertebrae. There was no
tenderness lateral to the spine over the region of the
transverse process of L2, L3, L4, or L5. Range of motion was
forward flexion to 35 degrees, backward extension to zero
degrees, and side bending to 20 degrees. It was noted that
x-rays of the lumbar spine in 1992 showed degenerative disc
disease at L3-4, but there was no mention of any abnormality
or old fracture of the transverse process of L2. X-rays of
the lumbar spine showed questionable L3-L4 degenerative disc
disease. The examiner noted that the veteran sustained a
fracture of the transverse process of L2 during service, and
developed degenerative disc disease of the spine over the
ensuing years. The examiner stated that there was no direct
relationship between fracture of the transverse process of L2
and the development of the cervical herniated nucleus
pulposus and degenerative disc disease of L3-4. Diagnoses
included fracture of the left transverse process L2, claimed,
but not seen on x-ray; degenerative disc disease of the
lumbar spine; and postoperative cervical fusion.
On VA examinations in November 1993, the veteran was
diagnosed as having, inter alia, degenerative joint disease
of the lumbar and cervical spine with limitation of motion.
A rating decision of March 1994 granted service connection
for fracture of the left transverse process at L2. It was
indicated that rating procedures had changed, and an
inservice bone fracture was now considered a chronic
disability warranting service connection whether or not
clinical or x-ray evidence following service showed evidence
of residuals. A noncompensable disability rating under
diagnostic code 5285 was assigned since there was no
demonstrable deformity of L2. Service connection remained
denied for degenerative disc disease.
A letter dated in March 1994 from Dr. Ashby was almost
identical to the May 1993 letter.
A rating decision of July 1994 denied a compensable
disability rating for fracture of left transverse process at
L2, finding that the veteran's lumbar spine disability was
attributable to the nonservice-connected degenerative
process.
A letter from Bret G. Fremming, M.D., dated in July 1994
indicated that he had examined the veteran, and, based on his
examination and the veteran's "fascinating story," it was
his opinion that the veteran's current complaints were
related to the fall sustained during service. Dr. Fremming
did not specify which current complaints were related to the
fall during service. However, he diagnosed degenerative disc
disease and degenerative joint disease of the lumbar spine
and lipping of the vertebral column.
A rating decision of November 1994 found that new and
material evidence had not been presented to reopen a claim
for service connection for degenerative disc disease of the
cervical and lumbar spine.
In October 1995, the veteran filed a statement asking what he
had to do to reopen his back claim. He submitted duplicate
service medical records, a report of x-rays conducted in
January 1977, and a letter from a Member of Congress
indicating that old x-rays had deteriorated and could not be
read. The January 1977 x-ray report showed degenerative disc
disease at C5-6, and C6-7, probable partial fusion across C5-
6 interspace, osteoarthritic changes at C2-3 level. The
findings were said to be somewhat unusual for a patient of
the veteran's relatively young age and quite possible post-
traumatic.
In connection with his claim, the veteran underwent a VA
examination in November 1995. He complained of pain in the
left back at the area of T12, particularly with a deep
breath. Upon examination, the veteran bent forward
minimally, extended to neutral, and had lateral bending to 15
degrees bilaterally. There was normal symmetrical vertebral
motion with no spasm. He walked with a short-type gait, and
he stated that he had done this since 1992 when he was
diagnosed with Parkinsonism. X-rays showed diffuse spurring
and lipping in the lumbar area and sclerosis of the facet
joints of L5 and L1. The transverse process on the left of
L2 appeared healed.
The doctor stated that fracture of the transverse process at
L2 is due to a muscle pull as the transverse processes are
attachment for muscle only. This would have no great effect
as far as a fracture on the overall spine, as they usually
heal and are sore for 6 to 12 weeks. After that, the
transverse process and the vertebrae are approximately
normal. The doctor did not think that this would cause the
veteran's degenerative disc disease, as this was usually due
to wear and tear changes over a period of time.
A rating decision of December 1995 denied a compensable
disability rating for fracture of left transverse process at
L2 and denied service connection for degenerative disc
disease as secondary to the service-connected fracture of
left transverse process at L2. In his substantive appeal,
the veteran stated that he had had pain in his back for 40
years, and he had not been given the benefit of the doubt.
In April 1999, the Board deemed that additional medical
expertise was needed to render an equitable disposition in
this case and requested a medical opinion from the Veterans
Health Administration (VHA) concerning the following
questions: (1) what is (are) the diagnosis(es) of the
veteran's low back disorder(s) at the current time; and (2)
is it as likely as not that this veteran's inservice fracture
of the left transverse process of L2 resulted in any of his
present back disorders, and, if so, which current back
disorder(s) are causally related to the inservice fracture;
and (3) does the veteran have any current back symptomatology
which may be related to his inservice fracture of the
transverse process of L2, and if so, what is it?
In May 1999, the VHA doctor, the chief or orthopedic surgery
at the VA Medical Center in New York, New York, and a
professor of clinical orthopedic surgery at N.Y.U. Medical
School, provided an expert medical opinion in response to a
specific Board request. The physician stated:
The subject veteran's medical record has been
reviewed in detail. The following data summarizes
the information derived from that review:
1. The letter of J. Sherman Roberts, Board
Member, Decision Team II dtd.20 [sic] April, 1999
fairly reviews the medical record and the record
of the numerous physical examinations performed on
this veteran.
2. It is apparent that the claims of chronic pain
in the back, neck and limbs over a 45 year period
are not those of structural disease as numerous
examiners noted the inconsistencies in his
physical examination, hyper reaction to minimal
pressure, and the lack of atrophy of the back or
limbs which would quickly follow upon a structural
disabling pain problem. The claims of chronic
headaches are not those of structural origin and
there was never a head injury..[sic] There has
also been an inflation of the history of the
injury. His Army medical records of 5 October
1954 clearly state that he reported that he had
jumped from a rock and fell landing on his back.
Later claims of a fall from a cliff, or being
mishandled in a rappelling maneuver and falling 45
feet are not valid according to the Army records.
Furthermore in rappelling the climber controls his
own descent although safety man might back up the
descent. A 45 foot fall has a significant
mortality rate and would, at least, result in
major trauma, which was never present here. In
1995 the veteran bases his claim to an injury to
the whole spinal column on the conjecture of a VA
examiner that to have developed the degenerative
changes in his spine he would have had to have a
major injury to the entire spinal column.
3. It is also of some interest that the cervical
spine of the subject veteran had been X-rayed on
6-19-53. This was reported as negative. There
was no history of injury at that time in the
medical record.
4. The Army medical records make no reference to
an injury to the neck region during the incident
of 10-5-54. He was treated for a fracture of the
transverse process of L-2 with a short period of
bed rest and in five days was walking to the mess
hall. Furthermore apparently there was no finding
of residual disorder when he was discharged from
the Army in 1955, although no record of the
discharge physical is extant. In any event a
physical examination on 5-23-55 by his own
physician was negative and states that the
examination on separation from the service was
negative. An examination on 7-29-55 was negative
and an x-ray of the lumbar spine on that date was
negative. While it is possible to have a
structural problem in the spine with negative x-
rays, a structural problem which produces pain
will be revealed by the physical examination.
5. Some of the physicians who examined [the
veteran] over the years felt that he had a
significant spinal injury and that the claims of a
disabling pain were valid and could be explained
by a direct spine injury. These include that of
Bret G. Fremming of 7-19-94, which also notes that
a spinal fusion of C 5-6 had given only temporary
relief; that of John D. Ashley [sic] of 3-22-94
which describes "marked displacement of the
sacrum," never substantiated by numerous other x-
rays; the report of Lynn W. Thompson, M.D. of 12-
27-82 who believes that the entire spinal column
was injured; and the letter of John Saunders, D.C.
of 9-3-82 which states that the displacement of L-
5 was the result of trauma. No displacement of L-
5 occurred at any time as far as I can determine.
Interestingly, the late changes in the lumbar
spine x-rays were not at the level of the L-2
transverse process fracture.
6. It is of some interest that the medical record
of the cervical spine fusion of 1973 performed at
the Porter Memorial Hospital in Valpariso,
Indiana, were never presented by the claimant
7. No X-ray studies have found a fracture of the
body of a lumbar or cervical vertebra, or a
dislocation of a spinal segment.
8. The sequential x-ray studies over the 45 year
history of the veteran's complaints have shown
progressive intervertebral disc degeneration in
the cervical region with relatively minimal
changes in the lumbar region at L4-5. This
progression does not require or even indicate back
trauma. Time and gravity are all that is required
for this wear of the intervertebral disks. The
pain which results from such changes is episodic,
not continuous, and is present in about half of
the population at one time or another. Of course
sometimes symptomatic nerve entrapment
necessitates surgical intervention but the
symptoms must be specific, localized to the nerve
roots of the levels involved, and corroborated by
physical findings.
A fracture of a transverse process is not the
result of direct trauma except occasionally in the
presence of a major fracture-dislocation of the
spine, usually at the junction of the thoracic and
lumbar regions. This was not present here. The
transverse process fracture is the result of
indirect injury, namely avulsion (tearing away) of
the bone by the pull of the lumbar muscles which
attach there. The soft tissue injury is greater
than the bone injury and usually heals in 3-6
weeks. The treatment is a short period of bed
rest followed by mobilization and exercise. In
this case there may also have been a bruise of the
lumbar region. Intervertebral disc injury is not
associated with an avulsion of the transverse
process.
It should also be mentioned that limitation of
trunk motion is not, in itself, an objective
finding in the evaluation of spinal disease. This
finding can be volitional. For it to be valid it
must be correlated with segmental rigidity as
evidenced by structural flattening of the back,
spasm with the arms and legs relaxed, restricted
rib motion when ankylosing spondylitis is present,
and abnormalities of muscle cadence action during
ambulation. Interestingly, most patients with
spinal rigidity will try to move the neck or trunk
although the spinal segments involved may not
move. Complaints of pain on light pressure to the
back are a strong indicator of the absence of
structural disease, whatever changes are seen on
X-rays.
In response to the specific questions posed by the
Board it is my opinion that there is no objective
evidence that the degenerative changes noted in
the radiographs of the veteran's spine are
productive of symptoms at this time. The
diagnosis would be "Degenerative Spondylosis of
the Lumbar and Cervical Spine." This diagnosis
is not, in itself, indicative of a disabling
disorder. It is not possible for me to state with
certainty if there is any disabling structural
disorder of the lumbar spine at this time without
my own physical examination or surveillance. From
the record any such disorder would be limited, as
the recent physical examinations have not
substantiated disability. The symptoms are not
those of a structural disease, considerable
exaggeration has been noted by several physicians
who performed careful examinations and there has
been inflation of the history of injury; all
negative indicators.
There is no logical connection between the injury
of 5 October 1954 and the radiographic findings
which are present now nor to the claimed symptoms
of pain in the lumbar region, headaches, neck
pains, arm and leg pains. No nerve injury or
disease has been demonstrated. The back injury of
1954 was a self limited disorder which resolved
quickly and which would not have any of the
sequelae now claimed. The X-ray findings later
described are not those of spinal trauma and
develop without spinal trauma. For these reasons
the answer to question (2) and (3) is that there
is no likelihood that the fracture of the
transverse process of L2 has resulted in the
present claimed disorder.
In August 1999, the veteran's attorney submitted a written
statement to the Board challenging the validity of the May
1999 VHA opinion. The attorney requested an opportunity to
have the veteran examined by an examiner of his choosing and
time to submit the results of the examination. On October
13, 1999, the attorney was notified that she had 90 days to
submit any such evidence. No additional evidence was
thereafter submitted in support of the veteran's claims.
II. Legal Analysis
A. Secondary service connection claim
The veteran's claim that is before the Board is one for
service connection for degenerative disc disease of the spine
as secondary to service-connected fracture of left transverse
process at L2. In this decision, the Board addresses the
contention that degenerative disc disease of the spine was
caused or aggravated by the service-connected fracture of
left transverse process at L2. In the Board decision of July
1998, the issue of whether new and material evidence had been
submitted to reopen a claim of entitlement to direct service
connection for spinal arthritis or degenerative disc disease
of the cervical, thoracic, and lumbar spine, i.e., as a
result of the veteran's inservice fall in 1954, was remanded,
and the Board does not herein address any other claimed
etiology for the degenerative disc disease of the spine other
than the service-connected fracture of left transverse
process at L2. The claim for secondary service connection is
a separate and distinct claim that is not inextricably
intertwined with the veteran's effort to reopen a service
connection claim for a degenerative disc disease of the spine
on a direct basis.
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(1999). Establishing service connection on a secondary basis
requires evidence sufficient to show (1) that a current
disability exists and (2) that the current disability was
either (a) caused by or (b) aggravated by a service-connected
disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown,
7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v.
Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet.
App. 34 (1991).
In making a claim for service connection, the veteran has the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim for secondary service connection for a
disorder must include medical evidence that a connection or
relationship between the service-connected disorder and the
new disorder is plausible. Jones v. Brown, 7 Vet. App. 134,
137 (1994). Even if there is another plausible explanation
for the origin of the new disorder, a claim for secondary
service connection is well grounded if there is a plausible
explanation, bolstered by sufficient medical evidence, of why
the new disorder should be service connected. Reiber v.
Brown, 7 Vet. App. 513, 517 (1995).
In the joint motion, the parties agreed that the veteran's
claim was well grounded, citing as follows: "(1) the 1978
x-ray diagnosis of 'traumatic arthritis of the lumbar
spine'. . .; (2) the December 1982 opinion of the VA examiner
that based upon the fracture of the transverse process that
was incurred as a result of an inservice fall 'it would be
reasonable to assume that degenerative changes in the
appendages would be of a traumatic nature,' and (3) the
opinion of Dr. Fremming 'that the [Appellant's] current
complaints were related to the fall sustained during service
. . . ." See Joint Motion, pages 10, 11. Assuming the
credibility of this evidence, the parties to the joint motion
determined that the claim was plausible, and therefore well
grounded.
Assuming, therefore, that the claim of entitlement to
secondary service connection is well grounded, the Department
has a duty to assist in the development of facts relating to
this claim. 38 U.S.C.A. § 5107(a) (West 1991). In this
case, the veteran was provided appropriate VA examinations
and a VHA opinion was obtained. It appears from the claims
file that most, if not all, of the relevant treatment records
have been obtained. It is possible that an additional VA
report of hospitalization dated in June 1976 is available, as
indicated by the veteran's attorney. It is not necessary,
however, that the Board remand this case to obtain additional
treatment records. Any additional treatment records would do
no more than confirm that the veteran currently has
degenerative disc disease of the spine, a fact that is
already shown by the evidence of record. The veteran has not
stated that any treatment records would contain any medical
opinion as to a relationship between his service-connected
fracture of left transverse process at L2 and degenerative
disc disease of the spine. Sufficient evidence is of record
to fairly decide the veteran's claim. Therefore, no further
development is required.
The statement of the case provided to the veteran in March
1996 failed to include the regulations pertinent to secondary
service connection. When a claimant has disagreed with a
rating decision, it is incumbent on the RO to provide him a
statement of the case that is complete enough to allow him to
present written and/or oral arguments before the Board.
38 C.F.R. § 19.29 (1999). Specifically, the statement of the
case must include, among other things, "[a] summary of the
applicable laws and regulations, with appropriate
citations." Id. In this case, the veteran was adequately
notified of the regulations regarding secondary service
connection in the reasons and bases portion of the statement
of the case, which informed him that "service connection may
be granted for disease or injury which is the proximate
result of a service-connected disability." This language is
similar to that contained in 38 C.F.R. § 3.310 and
sufficiently informed the veteran of the law applicable to
secondary service connection claims.
In evaluating a claim on the merits, the evidence is no
longer presumed to be credible. The Board must assess the
credibility and weight to determine its probative value,
accounting for evidence which it finds to be persuasive or
unpersuasive, and providing reasons for rejecting any
evidence favorable to the appellant. See Masors v.
Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1
Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Moreover, the Board may not base a decision on its
own unsubstantiated medical conclusions, but, rather, may
reach a medical conclusion only on the basis of independent
medical evidence in the record or adequate quotation from
recognized medical treatises. See Colvin v. Derwinski,
1 Vet. App. 171 (1991). The evaluation of credibility and
weight applies to the medical evidence before the Board.
Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
The Board finds as fact that the veteran is service connected
for fracture of left transverse process at L2. He has also
been shown to have degenerative disc disease of the spine for
several years. However, the Board concludes that the
preponderance of the evidence is against the veteran's claim
for service connection for degenerative disc disease of the
spine as secondary to service-connected fracture of left
transverse process at L2 because there is essentially no
evidence reflecting that degenerative disc disease of the
spine is related to the service-connected fracture of left
transverse process at L2.
The 1978 x-ray diagnosis of "traumatic arthritis of the
lumbar spine" and the opinion of Dr. Fremming that the
veteran's current complaints were related to the fall
sustained during active service address the question of
whether a disability of the veteran's spine was caused by
trauma, i.e., his inservice fall in 1954, and in no way
relate to the issue of whether the current complaints were
caused or aggravated by the service-connected fracture of
left transverse process at L2. As noted above, the issue of
whether new and material evidence has been submitted to
reopen a claim of entitlement to direct service connection
for degenerative disc disease is a separate matter not under
consideration by the Board at this point.
In reviewing the Joint Motion, the Board observes that the
parties to the Joint Motion misquoted the December 1982 VA
examiner. See Joint Motion, pages 10, 11. Therein, the
parties misquoted the examiner as saying that, based upon the
fracture of the transverse process that was incurred as a
result of the inservice fall "it would be reasonable to
assume that degenerative changes in the appendages would be
of a traumatic nature." In actuality, the examiner stated
that it "is my feeling that anybody who falls hard enough to
fracture a transverse vertebral process probably sustained
trauma to the whole spinal column, and it would be reasonable
to assume degenerative changes without evidence of
degenerative changes in the appendages would be of a
traumatic nature."
As misquoted in the Joint Motion, the December 1982 opinion
of the VA examiner would be of little, if any, probative
value. An appendage is a "thing or part appended; limb."
See Dorland's Illustrated Medical Dictionary 109 (28th ed.
1994). Direct service connection for arthritis of the limbs
is not an issue in this appeal.
Rather, the Board construes the December 1982 VA examiner's
opinion as drawing a connection between degenerative changes
of the veteran's spine and his inservice fall, which
reportedly resulted in trauma to the spinal column. Again,
this opinion in no way establishes or opines that
degenerative disc disease was caused or aggravated by the
veteran's service-connected fracture of left transverse
process at L2. Likewise, direct service connection for
degenerative disc disease is not an issue in this appeal.
The medical evidence of record that relates to the question
before the Board at this time expressly refutes any
relationship between the veteran's degenerative disc disease
of the spine and his service-connected fracture of left
transverse process at L2. For example, the VA examiner in
July 1993 concluded that there was no direct relationship
between fracture of the transverse process at L2 and
development of the cervical herniated nucleus pulposus and
degenerative disc disease at L3-4. The VA examiner in
November 1995 also indicated that fracture of the transverse
process at L2 would have no effect on the overall spine and
did not cause the veteran's cervical and lumbar degenerative
disc disease. Finally, the VHA doctor in May 1999 concluded
that there was no likelihood that the fracture of the
transverse process of L2 resulted in the veteran's present
degenerative disc disease.
The VHA doctor is a specialist in orthopedics, a practitioner
in a medical discipline which the Board finds well qualified
to address the etiology of the veteran's degenerative disc
disease, and based his opinion on the entire record with
consideration of the findings of other health professionals.
The VHA opinion was definitive and based on review of the
entire claims file with detailed rationale, and is found to
be persuasive when considered with the rest of the evidence
of record. The veteran's attorney's contention that the VHA
doctor based his opinion solely on a summary of the facts
provided by the undersigned is without merit. The doctor
specifically stated that the veteran's medical records had
been reviewed in detail, and that the VHA opinion request
drafted by the undersigned fairly reviewed the medical
record.
The Board finds that the probative and relevant evidence of
record forms a medical consensus that the veteran's
degenerative disc disease of the spine is not related to his
service-connected fracture of the transverse process at L2.
There is no medical evidence to the contrary. Any
contentions by the veteran that his degenerative disc disease
is somehow related to the service-connected fracture of the
transverse process at L2 are not competent. There is no
indication that he possesses the requisite medical knowledge
or education to render a probative opinion involving medical
diagnosis or medical causation. See Edenfield v. Brown,
8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Concerning the attorney's argument that she and the veteran
were not notified that the Board requested a VHA opinion, the
file contains an April 1999 letter addressed to her with a
copy provided to the veteran in compliance with 38 C.F.R.
§ 20.903 (1999). There is no evidence of record showing that
this letter was returned as undelivered.
The attorney further argued that, because the VHA examiner
was a VA employee, his opinion violated 38 C.F.R.
§ 38 U.S.C.A. § 7109. This argument is without merit. The
VHA opinion was requested in accordance with 38 C.F.R.
§ 20.901(a), not 38 C.F.R. § 20.901(d). Moreover, the Board
is under no obligation according to the law and regulations
to request input from the veteran and/or his representative
in framing the VHA opinion request, as alleged by the
veteran's attorney. See 38 C.F.R. § 20.901, 20.902 (1999).
For the reasons and bases provided above, the Board concludes
that the evidence in this case preponderates against the
claim for service connection for degenerative disc disease
claimed as secondary to service-connected fracture of the
transverse process at L2. The evidence in this case is not
so evenly balanced so as to allow application of the benefit
of the doubt rule as required by law and VA regulations. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1999). In making this determination, the Board reiterates
that it expresses no opinion with respect to the veteran's
claim, now on remand to the RO, for reopening a claim of
entitlement to direct service connection for spinal arthritis
or degenerative disc disease as a result of injury in
service.
B. Increased rating claim
The first responsibility of a claimant is to present a well-
grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim
for an increased disability rating is well grounded if the
claimant alleges that a service-connected condition has
worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992). In this case, the veteran has complained of
increased pain in his back, and he has satisfied the initial
burden of presenting a well-grounded claim.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103 (1999). The duty to assist
includes, when appropriate, the duty to conduct a thorough
and contemporaneous examination of the veteran. Green v.
Derwinski, 1 Vet. App. 121 (1991). In addition, where the
evidence of record does not reflect the current state of the
veteran's disability, a VA examination must be conducted.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the RO provided the veteran a VA examination,
and a personal hearing was scheduled in accordance with his
request. Sufficient evidence is of record for an equitable
disposition of the veteran's claim, and the duty to assist
has been complied with. 38 U.S.C.A. § 5107(a) (West 1991).
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder.
38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes
identify the various disabilities. Id. Evaluation of a
service-connected disorder requires a review of the veteran's
entire medical history regarding that disorder. 38 C.F.R.
§§ 4.1 and 4.2 (1999). Nevertheless, past medical records do
not take precedence over current findings in determining
whether to increase a disability rating, although a rating
specialist is directed to review the recorded history of
disability to make a more accurate evaluation. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). It is also necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2 (1999), and to
resolve any reasonable doubt regarding the extent of the
disability in the veteran's favor. 38 C.F.R. § 4.3 (1999).
If there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999). In every instance
where the schedule does not provide a zero percent evaluation
for a diagnostic code, a zero percent evaluation shall be
assigned when the requirements for a compensable evaluation
are not met. 38 C.F.R. § 4.31 (1999).
In DeLuca v Brown, 8 Vet. App. 202 (1995), the Court held
that codes that provide a rating solely on the basis of loss
of range of motion must consider 38 C.F.R. §§ 4.40 and 4.45
(regulations pertaining to functional loss and factors of
joint disability attributable to pain). To the extent
possible, the degree of additional loss due to pain, weakened
movement, excess fatigability, or incoordination should be
noted.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform normal working movements of the body with normal
excursion, strength, speed, coordination and endurance. It
is essential that the examination on which ratings are based
adequately portray the anatomical damage, and the functional
loss, with respect to all these elements. The functional
loss may be due to absence of part, or all, of the necessary
bones, joints or muscles, or associated structures, or to
deformity, adhesions, defective innervation, or other
pathology, or it may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. A little used part
of the musculoskeletal system may be expected to show
evidence of disuse, either through atrophy, the condition of
the skin, absence of the skin, absence of normal callosity or
the like. 38 C.F.R. § 4.40 (1999).
As regards the joints the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) Less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) More movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) Weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) Excess fatigability; (e)
Incoordination, impaired ability to execute skilled movements
smoothly; (f) Pain on movement, swelling, deformity or
atrophy of disuse. Instability of station, disturbance of
locomotion, interference with sitting, standing and weight-
bearing are related considerations. 38 C.F.R. § 4.45 (1999).
The veteran is currently evaluated as zero percent disabled
for residuals of fracture of left transverse process at L2
under Diagnostic Code 5285. Diagnostic code 5285 is for
residuals of fracture of vertebra. In this case, the veteran
did not actually fracture the L2 vertebra during service, but
the transverse process. This particular injury does not have
a specific diagnostic code, and the veteran's residuals from
this injury are rated as analogous to residuals from fracture
of a vertebra. See 38 C.F.R. §§ 4.20 and 4.27 (1999).
Under diagnostic code 5285, a 60 percent disability rating is
available for residuals of fracture of vertebra without cord
involvement and with abnormal mobility requiring a neck
brace. In all other cases under Diagnostic Code 5285, the
veteran's disability will be rated in accordance with
definite limited motion or muscle spasm, with 10 percent
added for demonstrable deformity of vertebral body.
The medical evidence does not show that there is deformity of
L2 in order to warrant an additional 10 percent disability
rating. In fact, no x-ray since service has shown that the
fracture is other than completely healed. The medical
evidence does not show that the fracture of the transverse
process of L2 has resulted in abnormal mobility requiring a
neck brace in order to warrant a 60 percent disability
rating.
In this case, there is no doubt that the veteran has limited
motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261
(1999). The determinative question, however, is whether that
symptomatology is due to his service-connected residuals from
fracture of the left transverse process at L2 or his
nonservice-connected conditions such as degenerative disc
disease and arthritis. In order to make that determination,
it is necessary to examine the medical evidence closely.
The medical evidence pertinent to this analysis consists of
service medical records and medical evidence dated from 1955
and 1977. Upon separation from service in 1955, there were
no reported abnormalities regarding the veteran's back.
Despite the veteran's complaints of pain, Dr. Harris stated
in June 1955 that the physical examination was essentially
negative. Upon VA examination in July 1955, there was no
residual orthopedic disease or disability found. There was
no tenderness, limitation of motion, muscle spasm, muscle
guarding, atrophy, or positive tests indicative of a back
disability. In 1977, Dr. Ashley indicated that the veteran's
complaints were not justified by physical or x-ray findings.
While Dr. Saunders indicated that he treated the veteran with
poor results for about six months after June 11, 1955, he
stated that his treatment was based on palpatory rather than
radiographic findings. His findings reportedly included an
apparent healed fracture of the neural arch, bilaterally, of
L5; evidence of misalignment subluxation of L4, L5; evident
functional deficiency, left lower extremity; displacement of
L5; and no discernible disc pathology. Dr. Saunders has
provided no contemporaneous treatment records or medical
findings which lend credence to or corroborate this reported
history. The June 1955 x-ray he provided was not readable.
The probative weight of his statements provided in 1978 and
1982 is further reduced given the gap in time between the
actual treatment and the written statements. Regardless, he
made no mention of any abnormality of L2.
Therefore, the medical evidence specifically shows that the
veteran did not have any type of residuals from the inservice
fracture of the left transverse process at L2 shortly after
service and as late as 1977. Indeed, his complaints were
attributed to a conversion reaction.
The first indication of any positive clinical findings was
the VA examination in 1978, approximately 23 years after the
veteran's separation from service. Only at that time did
examination show findings such as limitation of motion,
decreased reflexes, and positive straight leg raising tests.
This was also the first indication of any degenerative
disease of the lumbar spine. The diagnosis was traumatic
arthritis of the lumbar spine with mild residual loss of
range of motion. That diagnosis linked the symptomatology of
limitation of motion to the finding of arthritis. Of note, a
September 1978 x-ray of the lumbar spine showed the
transverse processes to be within normal limits.
In July 1993, the VA examiner concluded that there was no
direct relationship between fracture of the transverse
process at L2 and development of degenerative disc disease at
L3-4. In November 1995, the VA examiner concluded that the
veteran's degenerative disease was due to wear and tear
changes. The examiner's opinion was based on the fact that
the function of a transverse process is to attach muscles to
vertebrae, and fracture of the transverse process would heal
without any resulting effect on the vertebrae. The examiner
stated that a fracture of the transverse process usually
healed and was sore for only 6 to 12 weeks. The May 1999 VHA
doctor's opinion was consistent, in that he indicated that
any such injury usually healed in 3 to 6 weeks. More
importantly, the VHA doctor concluded that there was no
logical connection between the inservice injury and the now
claimed symptoms of pain in the veteran's lumbar region. The
doctor stated that the "back injury of 1954 was a self
limited disorder which resolved quickly and which would not
have any of the sequelae now claimed." The Board finds
these opinions persuasive. The conclusion that there is no
residual disability from the inservice fracture of the
transverse process at L2 is supported by the fact that every
post-service x-ray of the lumbar spine has failed to show
evidence of an old fracture at the transverse process of L2.
Specifically, prior fracture of the transverse process of L2
was not identified on VA x-rays of the spine taken in April
1986. Nor was it seen upon VA examination x-rays in July
1993. The transverse process on the left of L2 appeared
healed, as determined by VA x-rays in November 1995.
The veteran's fracture of the transverse process at L2 has,
therefore, completely healed. The inservice fracture of the
left transverse process precipitated the veteran's complaints
of pain; however, there were no clinical findings supporting
a conclusion that any disability had resulted from this
injury, especially when examining the medical evidence within
the first post-service year. There is no credible medical
evidence showing treatment for a back condition between 1955
and 1976, and the veteran's current claims of continuity of
back pain from service to the present must be assessed in
light of that fact.
There is no doubt that the veteran has pain on motion,
limitation of motion, and functional loss. 38 C.F.R.
§§ 4.40, 4.45 (1999). However, these symptoms do not warrant
a compensable disability rating. First, there is reason to
believe that the veteran is purposely exaggerating the
severity of his symptomatology. The medical evidence
contains several statements by medical professionals that the
veteran's complaints are out of proportion to the physical
findings. Second, beyond any element of exaggeration, it is
clear that the veteran's symptomatology is not due to his
service-connected condition, but to nonservice-connected
disorders such as degenerative disc disease and arthritis.
The location of the inservice fracture at the transverse
process of L2 has healed without any resulting disability.
After carefully examining the medical evidence in the case,
the Board finds that any increase in symptomatology since
service is not due to the service-connected fracture of left
transverse process at L2. There is no reasonable doubt that
the veteran's current level of disability is not due to his
service-connected condition. The evidence clearly shows that
the veteran's symptomatology as the result of his service-
connected disability is minimal, if any. There were minimal
symptoms upon separation from service and within the first
post-service year (i.e., complaints of pain with no physical
findings). Only with the findings of degenerative disease 23
years after service has the veteran's back disability
seriously deteriorated. Accordingly, the Board finds that
the preponderance of the evidence is against assignment of a
compensable disability rating under diagnostic code 5285.
ORDER
Entitlement to service connection for degenerative disc
disease as secondary to service-connected residuals of
fracture of left transverse process at L2 is denied.
Entitlement to a compensable disability rating for service-
connected residuals of fracture of left transverse process at
L2 is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals